Parents Decide Not To Appeal Decision In Baby's Death

July 23, 2003|By PATTI ROSENBERG Daily Press

A James City County couple has decided not to appeal a decision last month that barred them from suing the doctor, medical practice and hospital involved in delivering their baby daughter who died minutes after birth.

Brian and Kelly Harriss wanted Dr. Gloria Campbell, Womancare of Williamsburg and Williamsburg Community Hospital to be held accountable for mistakes they believe caused their baby's death. So they filed a $3.2 million lawsuit in Williamsburg-James City County Circuit Court.

But the doctor's attorney got the case shifted to the Virginia Workers' Compensation Commission, where a chief deputy commissioner ruled last month that the case should be handled under the Birth-Related Neurological Injury Compensation Act. The state's Workers' Compensation Commission administers the program.

Experts in medical malpractice cases said the Harriss' experience is a rare use of the injury compensation act. Most of the cases handled involve children who live for days, weeks, months or years.

At first, other officials at the compensation commission said they planned to challenge the ruling in the Harriss case, saying that it was not appropriate for the neurological compensation fund.

But when they decided not to ask the top level of authority at the commission to review ruling, the Harrisses decided that they would not fight the decision alone.

The Birth-Related Neurological Injury Compensation Act was passed in 1987 in response to a medical malpractice crisis, during which Virginia obstetricians were finding it difficult to get coverage.

The law was designed to help them get malpractice insurance by taking the most severely injured infants out of the court system. In return, the children and their families were guaranteed that their medical expenses and economic losses would be covered without the uncertainty and delay of litigation. Those eligible were infants who suffered spinal cord or brain injuries as a result of oxygen deprivation or mechanical injury during birth, leaving them permanently disabled.

The families of children compensated under the act are not permitted to pursue lawsuits.

The Harrisses had planned on appealing the chief deputy commissioner's decision to the full commission -- which consists of three commissioners.

But they expected officials at the commission to fight the ruling with them, Mrs. Harriss said.

Since then, they have decided that the process would be "too difficult emotionally," said Richard AtLee Jr., a Hampton attorney representing the Harrisses.

Whichever side won the next appeal, further appeals could be anticipated to the Virginia Court of Appeals and Virginia Supreme Court, each step forcing the Harrisses to relive the trauma of their child's death before they could get the case into court for a trial on whether or not Campbell and the hospital had committed malpractice, AtLee said.

The couple was prepared for the agony of bringing the lawsuit, Mrs. Harriss said, but not the additional stress caused by the case having to go through so many extra hurdles.

Doctors at the Medical College of Virginia, who later reviewed the medical records, concluded that baby Stella Page Harriss was deprived of oxygen during the labor and delivery process Oct. 25, 2000, which caused irreparable brain damage resulting in death.

"It's just incredible that this could happen without any recourse," said Kelly Harriss. "Where's the justice?"

She lamented that Campbell gets to just walk away without an explanation.

Neither Campbell nor her attorney could be reached for comment.

A spokeswoman for Womancare of Williamsburg said Campbell is now a stay-at-home mother and is no longer in practice. She said she did not have any phone number for Campbell, who also does not have a local phone number listed in her name.

A spokeswoman for the Virginia State Board of Medicine said Campbell was still licensed to practice. She said that the board does not disclose whether any licensing actions are pending against a doctor.

Campbell's records show that she settled a lawsuit in 1998 prior to the Harriss case, but the public part of that record does not provide any details of that case.

Patti Rosenberg can be reached at 223-5686 or by e-mail at prosenberg@dailypress.com